But in this case the bailee has sued the bailor, a somewhat unusual situation. The bailee has pled the unseaworthy condition of the vessel as the cause of the sinking and in our view the bailee must prove that condition by a preponderance of the evidence. It is implied in Consol's complaint that the action is one for breach of warranty, i.e., breach of the warranty that every owner implies when he delivers a vessel into the hands of a bailee or charterer that the vessel is seaworthy, and the complaint implies that Consol did not waive the warranty because it pleads that the unseaworthy condition was not disclosed and was not ascertainable in the ordinary course of plaintiff's business.

No bailment contract was introduced in this case and perhaps the contract is an oral one, the terms of which depend on custom because these parties have been engaging in business for years. There is, of course, an implied warranty which the owner of a vessel implies in all cases that his vessel is seaworthy. That warranty may, of course, be breached. It may also be waived but when there is a suit by a bailee or charterer against an owner for breach of the implied warranty of seaworthiness the action proceeds as any other contract action. See Robinson on Admiralty, Hornbook Series, page 605.

The conclusion, therefore, is apparent, that Consol was required to prove the unseaworthiness of the vessel and in our view it failed.

Therefore, judgment will be entered for the defendant in the suit by Consol against USS.

In the counterclaim USS having proven that it delivered the vessel to Consol in good condition and received it in damaged condition, the burden shifts to Consol to explain the accident and absolve itself. Consol has failed. Accordingly, judgment will be entered for USS on the counterclaim in the sum of $258.00 with interest.

This memorandum shall be deemed to comply with Rule 52.

ORDER

And now, August 30, 1973, in the suit of Consolidation Coal Company v. United States Steel Corp. judgment is entered for defendant.

In the counterclaim of United States Steel Corp. v. Consolidation Coal Company, judgment is entered for United States Steel in the amount of $258.00 with interest.

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